R v Thomson

Case [2009] SASC 237

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v THOMSON

[2009] SASC 237

Judgment of The Court of Criminal Appeal

(The Honourable Justice Bleby, The Honourable Justice David and The Honourable Justice Kelly)

11 August 2009

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE GOVERNMENT - OTHER OFFENCES

Prosecution appeal against sentence on ground of manifest inadequacy - respondent pleaded guilty to four counts of imposition contrary to s 29B of the Crimes Act 1914 (Cth) and three counts of dishonestly causing a loss to the Commonwealth contrary to s 135.1(5) of the Criminal Code (Cth) - District Court Judge imposed sentence of two years and nine months imprisonment and ordered respondent be released forthwith on entering into recognizance to be of good behaviour for two years.

Held: Sentence was so inadequate as to require intervention by appeal court in order to maintain an adequate standard of punishment for crimes involving deliberate and sustained fraud on social security system - guidelines laid down in Kovacevic clear and should be followed by sentencing Judges.  Respondent re-sentenced to extent of cancelling release order forthwith and ordering that she be imprisoned for nine months of sentence before being eligible for release on recognizance.

Crimes Act 1914 (Cth) s 29B, s 20 ; Criminal Code (Cth) s 135.1(5), referred to.
R v Ozenkowski (1982) 30 SASR 212; Everett v R (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; Kovacevic v Mills (2000) 76 SASR 404; DPP (Cth) v AB (2006) 94 SASR 316, applied.

R v THOMSON
[2009] SASC 237

Court of Criminal Appeal:       Bleby, David and Kelly JJ

  1. BLEBY J:             I agree with the orders proposed by Kelly J and with her reasons.

  2. DAVID J:              For the reasons given by Kelly J, I would allow the appeal. I agree with the orders she proposes.

  3. KELLY J:

    Introduction

  4. The Director of Public Prosecutions has appealed against a sentence imposed in the District Court. 

  5. The respondent pleaded guilty in the Magistrates Court to four counts of imposition contrary to Section 29B of the Crimes Act 1914 (Cth) and three counts of dishonestly causing a loss to the Commonwealth contrary to Section 135.1(5) of the Criminal Code (Cth). The maximum penalty for each of the offences of imposition is two years imprisonment and for each of the offences of dishonestly causing a loss, five years imprisonment.

  6. On 27 May 2009 the respondent was sentenced to imprisonment for a period of two years and nine months. Under the provisions of Section 20 of the Crimes Act she was released forthwith upon entering into a recognizance to be of good behaviour for two years. 

  7. The appellant has only appealed against the failure to order that at least some of the sentence be served in custody.  It was contended that the order for immediate release was a manifestly inadequate sentence, such…

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R v Thomson [2009] SASC 237
Case
[2009] SASC 237
Decision Date

CaseChat Overview and Summary

The case of R v Thomson involved an appeal by the Crown against the sentence imposed by the District Court on the respondent. The respondent had pleaded guilty to multiple counts of fraud against the social security system, and the District Court had sentenced her to two years and nine months imprisonment, but ordered her immediate release on the condition of good behaviour for two years. The Crown appealed, arguing that the sentence was manifestly inadequate and failed to maintain an adequate standard of punishment for crimes involving deliberate and sustained fraud on the social security system.

The central legal issue was whether the sentence imposed was so inadequate as to require intervention by the appeal court. The Crown argued that the District Court's decision to order the respondent's immediate release without any period of imprisonment was manifestly inadequate and inconsistent with the need to maintain an adequate standard of punishment for such crimes. The appeal court had to determine whether the guidelines set out in Kovacevic should be followed, and whether the sentence imposed was insufficient in light of the nature and extent of the respondent’s fraud.

The appeal court found that the sentence was indeed manifestly inadequate and required intervention to maintain an appropriate standard of punishment for the respondent's crimes. The court emphasized the importance of following the guidelines set out in Kovacevic, which highlighted the need for an adequate level of punishment for crimes involving deliberate and sustained fraud on the social security system. The appeal court determined that the District Court's decision to order the respondent's immediate release was disproportionate to the gravity of the offences. Consequently, the appeal court cancelled the release order and ordered that the respondent be imprisoned for nine months before being eligible for release on recognizance. This decision ensured that the sentence reflected the seriousness of the respondent's fraudulent activities.

In conclusion, the appeal court's decision re-sentenced the respondent to a nine-month imprisonment, with eligibility for release on recognizance thereafter, ensuring that the punishment met the required standard for crimes of this nature.

Orders

Orders of the court

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Background

Background to the litigation

The appellant has only appealed against the failure to order that at least some of the sentence be served in custody. It was contended that the order for immediate release was a manifestly inadequate sentence, such as to require intervention by this Court in order to maintain an adequate standard of punishment for crimes of this nature. Background The offences for which the respondent was convicted were committed over a period of some eight and half years from September 1994 to April 2003 and then for a further period of some three years from September 2004 to November 2007. In February 1994 the respondent applied for and was granted a parenting pension in relation to her two young children at a time when she was their fulltime carer and on leave from her employment. She returned to work in September 1994 but did not notify the Department of Social Security of that return. Thereafter she continued to receive a pension until 22 April 2003. On that date payments ceased because a data match between the Australian Taxation Office and the Department of Social Security revealed that she was employed. Later in 2003, the respondent took leave without pay from her employer and on 6 August 2003 re-applied for a parenting pension. At that stage she was entitled to the pension. On 25 November 2003 the respondent was interviewed by Centrelink and agreed that she had previously failed to inform Centrelink that she had received the pension during a period that she was employed. In July 2004 she resumed work with the same employer but did not advise Centrelink of her return to work and continued to receive pension payments to which she was not entitled from September 2004 until December 2005. Significantly in that same time period she was, on 19 November 2004, served with an Information and a Complaint charging her with social security fraud. She appeared in the Magistrates Court in 2005 in relation to those charges but having later failed to attend on court dates, a bench warrant was issued for her arrest on 9 December 2005. In December 2005 the respondent commenced working for the Department of Family and Community Services and again did not advise Centrelink of her employment but continued to receive pension payments to which she was not entitled until November 2007. During that time period, in June 2006 she lied to Centrelink during a phone call about her work status and again in April 2007 by falsely informing Centrelink that she would be starting work with the Department for Family and Community Services on 30 April 2007, despite having worked there since December 2005. She also told Centrelink in April 2007 she would advise their office of her income but never did so. In October 2007 the respondent was placed on a fortnightly reporting regime and falsely completed three payment forms between October and November 2007 stating that she had received no income from her employment. Payments to her were stopped in November 2007 because she did not return a review form sent to her by Centrelink.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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